The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
2nd July to 15th July 1946

I have already shown how, in the course of a step-by-step
transformation which laid particular emphasis on legal
forms, Hitler replaced all the highest authorities of the
Weimar period, and combined all the highest competences in
his own person. His orders were law.

The circumstances in a State may be such that the man who is
legally solely competent for the decision about war and
peace has, in practice, no - or not the sole - authority. If
however, both the sole legal competence and the sole
authority in actual practice have ever been coincidental in
any State such was the case in Hitler Germany, and if, in
any question, Hitler ever even accepted the advice of a
third party, such was not the case in the question of war or
peace. He was the arbiter of war and peace between the Reich
and other nations.

He alone.

In conclusion:

Sentences against individuals for breach of the peace
between States would be something completely new legally,
something revolutionarily new. It makes no difference
whether we view the matter from the point of view of the
British or the French Chief Prosecutors.

Sentences against individuals for breach of the peace
between States presuppose other laws than those in force
when the actions laid before this Tribunal took place.

The legal question of guilt - and I am here only concerned
with that - is thus posed in its full complexity. For not
one of the defendants could have held even one of the two
views of the legal world constitution on which the Chief
Prosecutors base their arguments.

THE PRESIDENT: Dr. Sauter, could we take up the time between
now and one o'clock in dealing with that letter if you have
it now, and possibly Dr. Exner also has his letter.

DR. SAUTER (counsel for defendant Funk): The defendant
Walter Funk was questioned here as a witness under oath.
After his examination, he told me that on one point his
testimony was not quite correct, and he asked me to correct
his testimony on this point. Since he himself had no
opportunity to do so, on 17th June, 1946, I wrote the
following letter to the President of the International
Military Tribunal, which is signed by defence counsel Dr.
Sauter as well as by the defendant Walter Funk personally. I
shall read the text of the letter:

"Re: Penal case against Walter Funk; correction of the
testimony:

The defendant Walter Funk in his cross-examination on 7th
May said that he - that is, Funk - heard only through
Vice-President Puhl of a deposit of the SS at the
Reichsbank. The witness, Emil Puhl, when he was examined,
testified that it was Funk who had spoken with the
Reichsfuehrer SS Himmler and he - that is, Puhl - was
then informed by Funk about the deposit to be set up.
From the statements of the witness Emil Puhl the
defendant Funk reached the conclusion that, in fact, on
this point, the statement of the witness Emil Puhl is
correct, and, after some consideration, the defendant
Funk believed that he could remember himself that it was
he, Funk, to whom Reichsfuehrer SS Himmler first applied
concerning the establishment of a deposit for the SS and
that he then informed Vice-President Puhl about this
matter.

The statement by the defendant Funk under cross-
examination was due to faulty recollection, because of
the fact that these cross-examination questions of the
prosecution had completely surprised and greatly
disturbed Funk. Immediately after the examination of the
witness Puhl, Funk informed me of his mistake and asked
me to correct his factually incorrect statement on this
point, since he himself would have no opportunity to do
so.

[Page 103]

I bring this request of the defendant Funk, and I take
the liberty of informing the President of the correct
state of affairs. The defendant Funk agrees with this
correction by co-signing this letter."

Then there are the two signatures, "Walter Funk" and "Dr.
Sauter". That is the contents of the letter which I sent on
17th June, 1946, to the President to correct the testimony
of Funk.

THE PRESIDENT: Thank you, Dr. Sauter.

Dr. Exner, have you got your letter that you may read it?

DR. EXNER (counsel for defendant Jodl): Mr. President, I was
downstairs in the General Secretary's office, and I was
promised it at one-thirty, but I have not yet received it. I
am sorry; at the moment I am not in a position to fulfil
your request.

THE PRESIDENT: You probably will have it at two o'clock.

(A recess was taken until 1400 hours.)

DR. EXNER: Mr. President, I shall read the letter dated 22nd
June, 1946, sent to the International Military Tribunal:

"Mr. President:

During the cross-examination on the 6th day of June,
1946, the British prosecution presented Document 139-C to
the defendant Jodl obviously thinking that the document
showed evidence of preparatory measures for occupying the
Rhineland as early as 2nd May, 1935 - "

THE PRESIDENT: I am told that the English is coming through
on the Russian line.

(The proceedings suspended temporarily.)

THE PRESIDENT: Go on, Dr. Exner.

DR. EXNER:

"The defendant Jodl has stated that he did not know the
document. After looking through the document, he
explained that it is quite obvious from the document that
in the west, at any rate, there was no plan for any
German action, but that definitely only defensive
measures were being talked about. He did not discover
where the operation 'Schulung' was supposed to take
place, he could only guess.

Defendant Freiherr von Neurath has now informed him that
in 1934 during the summer, Mussolini had stationed
several divisions at the Brenner Pass in order to occupy
northern Tyrol in the event of the 'Anschluss'. The
defendant Jodl, after receiving this information, perused
the document again, and he now imagines that according to
this document an operation was to be prepared, to thrust
the Italians back across the Brenner Pass in the event of
their marching in. But he knows nothing about this
affair.

The entire matter has nothing at all to do with the
defendant Jodl, and for that reason I shall not refer to
it during this session. He is extremely anxious, however,
that it should not appear as if he had attempted to
conceal anything."

It is signed "Exner" and "Jodl".

THE PRESIDENT: Very well.

Now I call on Dr. Stahmer.

DR. STAHMER: Mr. President, to begin with, I should like to
remark that I have still to complete the case Katyn. The
case Katyn could not be incorporated into the book which has
been submitted to the Tribunal, because the hearing of the
evidence only took place on Monday and the day before
yesterday. I shall have to present it, therefore, without
its being in the book. It is only a brief presentation, and
the interpreters will receive copies of my draft.
Unfortunately, however, I cannot submit a translation to the
Tribunal at the moment, as the
[Page 104]
hearing of the evidence was concluded only the day before
yesterday and I could not work on it before. I shall add
this at a suitable moment, and I hope that in spite of this
I shall be finished within the time I mentioned.

THE PRESIDENT: Some second voice is coming through on the
English line.

(The proceedings suspended temporarily.)

THE PRESIDENT: Is that all right now? Go on, Dr. Stahmer.

DR. STAHMER: When I mentioned the time I would require I
could not take into account the Katyn case. Nevertheless, I
hope that I shall be able to finish in the time which I have
stated, as I am shortening the report in some places and I
believe I shall have sufficient time.

FINAL DEFENCE SPEECH FOR THE DEFENDANT HERMANN WILHELM
GOERING:

May it please the Tribunal: this Trial, which is of
historical and political importance, and of significance in
shaping new laws and which is of dimensions such as have not
been known hitherto in the history of law; these proceedings
which concern not only the defendants present in court, but
which are of the greatest importance to the German people,
are now passing into a new phase.

The defence has the floor.

The position of the defence in these proceedings is
especially difficult; for there is an all too unequal
distribution of strength between the prosecution and the
defence.

Months before the start of the trial the prosecution -

(Proceedings temporarily suspended.)

The difficult position of the defence is further aggravated
by the fact that in the Anglo-American procedure on which
this trial is based there is a clause missing which is
contained in the German criminal procedure according to
which the prosecution is also bound to procure and submit
evidence exonerating the accused.

THE PRESIDENT: Dr. Stahmer, let me tell you that the
statement you have just made is entirely inaccurate. There
is no such thing as an English code of criminal procedure
but it is the universal practice for the prosecution to
disclose to the defence any document and any witness who
assists the defence and therefore your statement is entirely
false, and I believe the same practice obtains in the United
States.

And as for what you say here about the defence being under
any unfair difficulties as compared with the prosecution,
that also is entirely inaccurate because I feel certain that
the prosecution in this case have observed the same rules
that would have been observed in England and would have
disclosed to the defence any document or any witness over
whom they had control, who would assist the defence, and
there have been various occasions on which the prosecution
have disclosed in this case to the defence documents which
have been supplied to them which appeared to them to help
the defence.

Every document which has been put in by the defence in this
case, or practically every document, has been procured for
them after great efforts by the prosecution, and
investigations have been made all over Germany and I may say
almost all over the world in order to help the defence.

DR. STAHMER: Thank you for your instruction, Mr. President.

After the reading of the Indictment, Reichsmarschall Goering
in reply to the question of the presiding judge as to
whether he pleaded guilty or not guilty, declared: "Not
guilty in the sense of the Indictment." This statement of
the accused necessitates an examination of all the charges
made by the prosecution.

The accused has, of course, already dealt with many
questions, which are of considerable importance for his
defence, during his personal examination. He expressed his
opinion in detail with regard to political and military
developments

[Page 105]

and exhaustively described the motives for his actions, and
the origin and course of events.

I am thankful to the High Tribunal for permitting the
accused to portray matters to the total extent to which he
saw, felt and experienced them, for this, and only this
direct personal portrayal can afford good insight into the
personal attitude of the accused and make it possible to
give a reliable opinion of his personality. This knowledge
is absolutely necessary if the Tribunal is to come to a
decision which is not only in harmony with objective law but
which also renders the maximum of justice to the
individuality of the perpetrator.

I do not consider it necessary - after the accused has been
heard so exhaustively on all particulars - to deal with
every question to which he has already given the requisite
explanation. For this reason I can limit the defence to the
following statements:

We are in a transitory period of history of the greatest
significance. An age is coming to an end which has been less
known for its concept of order than for its concept of
liberty. This striving for liberty released tremendous
forces - so gigantic that in the end it was impossible to
master them. The tremendous progress this era has
unquestionably made in scientific and technical spheres we
have dearly paid for with the shattering of all human order
and the loss of peace in the entire world.

So far the profound reasons for such a disastrous
development have hardly been discussed in this Court. But in
order to rightly understand the grave crimes and confusion
which are indicted here it is imperative to throw some light
on the historical background.

The French Chief Prosecutor has already pointed out that the
roots of National Socialism are to be found in a period far
removed from us. He goes back to the beginning of the last
century. He sees the first step to a leading astray of the
German character in Fichte's Reden an die Deutsche Nation
(Speeches to the German Nation). Fichte preached the
doctrine of "Pan-Germanism", he says, in so far as he wanted
to see the world planned and organized by others, just as he
himself saw it and would have liked it to be shaped. I
cannot understand how this should express more than the
universal human desire to take part in the shaping of a
common destiny. Only the methods of such attempts to
participate may, at times, be justly criticized.

In order to save time I shall omit the following sentences
and begin with the next paragraph.

If one wishes to think historically, one cannot look back
and consider Fichte alone. For his Reden an die Deutsche
Nation was only an answer to the Ruf an Alle (Call to
Everyone) which the French Revolution had sent out into the
world, and they were directly provoked by the appearance of
Napoleon. One must go back over the chain of causes and
effects to their very beginning. This, the beginning of a
national and personal striving for liberty which has
characterised the whole of modern times, we find in the
Middle Ages.

The colourful play of national and imperial tendencies and
struggles which had typified ancient times was overcome by
the conception of one eternal omnipotent Christian Church.
With this a State order superseded the dynamic forces of the
time, an order which according to the doctrine of the Church
was created by the Lord Himself and was therefore "by the
grace of God" (von Gottes Gnaden). It strove to embrace
universally all humanity and to lead to peace and rest in
God. It was the teachers of the Church in the Middle Ages
who first ventured to subject war to the principles of law.
Prior to that it was accepted as a natural phenomenon, like
sickness or bad weather, and was often looked upon as a
judgement of God. Men like St. Augustine and Thomas Aquinas
opposed this conception and declared that one must
differentiate between a just and an unjust war. They did
this upon the basis and within the framework of a Christian
belief, by which God had entrusted mankind with the
fulfilment of a moral world order to bind one and all,

[Page 106]

and which would provide the answer to the question of the
righteousness or unrighteousness of a war.

When with the Renaissance and the Reformation the spiritual
basis of the medieval order was shaken, this development
into a universal world peace took on the opposite character.
Life, formerly inclined towards an orderly peace based upon
the State, now turned into a torrent which, as it swept
faster through the centuries, gradually grew to the present
catastrophe. The individual thirsting for freedom dispensed
with the shackles of Church and class distinction. The
State, declaring itself sovereign, violated the universal
order of God as represented by the Church. Not recognising
any superior power, it began to conquer as much living space
(Lebensraum) as it could on this earth, as long as the
stronger will of another nation did not impose any natural
barriers on it. Peace hence existed only in the naturally
rather unstable equilibrium of Powers, obeying only their
own laws.

The theory of war as a crime created by Grotius, the teacher
of International Law, quoted by the prosecution failed
because it was incompatible with the dynamic power of this
time. It embodies as we know only an attempt to keep alive
through secular arguments the aforementioned concept of
Christian warfare. One cannot, however, derive justice from
nature alone. It knows no other measure than brute force.
It, actually, always decides in favour of the stronger.
Considered from a metaphysical standpoint, justice can be
defined as an independent force, set above natural impulses.
Therefore the theory of Grotius necessarily petered out in
the eighteenth century since, thinking in a purely worldly
sense, it could not find a criterion for a just war.

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